Enforced or not, repressive laws are bad

NEW YORK – The creeping infringement of human rights in Russia under President Vladimir Putin raises a broader quandary for the international community: Do repressive laws matter if they’re rarely or never enforced?

Over the past year, Russia’s parliament has passed a raft of measures impinging upon the human rights of its citizens. They allow authorities to impose onerous fines for unsanctioned gatherings, shut down websites they view as extremist and imprison journalists for slander.

Because the laws are often vaguely worded and have not yet been aggressively enforced, some might see them as something less than serious. As Bloomberg View writer Leonid Bershidsky put it: “The Parliament has used its year in power to turn Russia from a pretend democracy into an equally fake dictatorship.”

Such analysis overlooks the powerful effect of simply having repressive rules on the books. The selective enforcement of draconian laws and regulations is a well-used tool of dictators worldwide. The strategy lets them single out opponents of their regimes, and has a chilling effect on those who would like to push for a government that respects human rights.

Consider Europe’s last dictatorship, the ex-Soviet state of Belarus. Any assembly requires advanced permission from the government, a common stipulation even in free societies. In Belarus, permission can be denied arbitrarily. This results in the refusal of permits for regime opponents, who are then beaten and arrested should they dare to go ahead with gatherings. Prison sentences have been handed out for activities as innocuous as clapping hands along with a protest.

Belarusian elections offer an even starker example. In the 2010 presidential race, seven of nine opposition candidates were jailed; several received lengthy prison terms. Opposition candidate Andrei Sannikau was convicted of breaching public order for his role in organizing a protest. Put simply, in Belarus, if you agree with the regime, you are welcome to take to the streets in support or stand for elections. If you disagree, you are headed to jail.

The Chavez regime in Venezuela has had a similarly selective approach to enforcement. Regulators have used a 2004 content law to shut down opposition media outlets, a campaign that has resulted in an extremely pro-government media. The crackdown promises to expand under a 2010 law extending content restrictions to the Internet.

Belarus and Venezuela are positive example — in that they are real instances where selective enforcement of laws was used to dissuade opposition. The unseen, negative effects could be still greater.

If you were an activist in a country that is something less than free, would the possibility of substantial punishment dissuade you from pursuing your liberties? Most activists would say no, that the fight for freedom is worth it. What if you were merely considering becoming an activist? How about if you were an ordinary citizen who had only recently become frustrated by government policies and were looking for a way to express that anger? Then the answer becomes much more difficult.

It’s overly simplistic to assume that dictators and despots do whatever they want without any regard for the law. In the seminal volume “Constitutions in a Non-Constitutional World,” legal scholar Nathan J. Brown details Arab Basic Laws under autocrats who had no interest in respecting freedom or human rights.

Instead of writing such legal documents and then violating them, oppressive governments simply wrote laws that allowed them to be oppressive and then used those powers primarily against opponents.

Getting countries to abide by international law, which forbids such repressive legislation, has always been difficult. This is no excuse for giving up. There are several steps that can be taken to encourage states to respect fundamental human rights.

First and foremost, the world’s single superpower, the United States, must show a renewed respect for international law. This could begin with ratification of the Law of the Sea Convention and a renewed conversation regarding U.S. participation in other global legal regimes, such as the International Criminal Court.

The United Nations can also take steps. For example, Venezuela is currently a member of the UN Human Rights Council. Participation on such bodies by serial human rights violators should not be tolerated. Only if leadership comes from the U.S. and the U.N. will international law have a chance of becoming a consideration for despotic governments.

Andrew Friedman is an international human rights lawyer and consultant. The opinions expressed are his own.